No. 12810 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 1975

EDWARD J. SHELTON, JR., D.O., Plaintiff and Appellant,

BOARD OF MEDICAL EXAMINERS;and THE ATTORNEY GENERAL OF THE STATE OF MONTANA, Defendants and Respondents.

Appeal from: District Court of the First Judicial District, Honorable Gordon R. Bennett, Judge presiding. Counsel of Record: For Appellant: William Dee Morris argued, Helena, Montana For Respondents: John Poston, argued, SpecialAssistantAttorney

General, Helena, Montana

Submitted: January 16, 1975 Decided: 

## ApR281975 Filed: 

### bp~ 

## 2TI Ig/'gMr. Justice Gene B. Daly delivered the Opinion of the Court.

This is an appeal from a judgment entered in the district court, Lewis and Clark County, affirming the Montana Medical Board of ~xaminers'decision inrefusing to license plaintiff Dr. Edward 

### J. Shelton, Jr., to practice medicine and surgery in Montana. Plaintiff's applicationwas based on reciprocity, involving the states of Washington, Michigan and Kentucky. Dr. Shelton received his Doctor of Osteopathy degree in 1958 from the College of Osteopathic Physicians and Surgeons at Kansas City, Missouri. He applied for a license topractice unlimited medicine and surgery inMontana in 1971. A temporary conditional license to practice medicine and surgerywas issued pursuant to section 66-1027(3), R.C.M. 1947. Such licensewas conditioned upon the information supplied by Shelton being substantiated and verified by the ~oard's investigation and further, upon ~helton's promise that he would take the required stateexamination when given in December 1971. The Board made the necessary arrangements for Shelton to take the examination in Helena inDecember 1971. He failed to appear on the day the examination was scheduled, but laternotified the Board he had been too busy to take the examination in December, but promised he would do so in June 1972. Again, arrangements were made for Shelton to take the examination, but again he failed to appear. The temporary, conditional license to practice medicine issued to Sheltonwas allowed to expire in October 1972. The First Regular Session of the Forth-Third Legislature of Montana amended the Medical Practice Act in 1973. Section 66-1025

was amended by adding a subsection 6, which provides: "~olders of the degree of doctor of osteopathy granted in 1955 orbefore willbe certified only on the basis of taking and passing the examination given by the department, subject to section 828-1603. Holders of thedegree of doctor of osteopkithy granted after 1955

### will be certified inthe same manner asprovided above for physicians." (Emphasis supplied.) Because of this legislative enactment, effectiveMarch 21, 1973, Shelton notified the Board he wished tohave his application reevaluated. The Board again apprised him that his application

was deficient in several respects. One of these deficiencies

was that people he had named aspersonal references did not respond to the Board in such a manner aswould enable the Board to give Shelton 

### a permanent license. The Board alsoadvised him he would be required to take the Flex Examination, a standard medical examination given nationally and accepted by a majority of the states. The Board stated itwould waive thebasic science portion of that examination. Further, that Sheltonwould be required topay the $100 fee asrequired by law and to sign the affidavit on his application, which was necessary forverification. On August 21, 1973, Sheltonwas again notified by the Board, this time inwriting, that itwas refusing toaccept his application forreciprocity on these four grounds: 

### 1. Applicant failed topay the required fee. 2. Applicant failed toverify his application. 3. The responses from

### permsnamed asreferences were insufficient. 

### 4. The applicant failed totake the Flex Examination as required by theBoard. Contained in the same notice of nonacceptance of his application

was a notice of hearing on the matter October-15, 1973 at 10:OO a.m. Shelton was in the process of changing attorneys atthis time and for this reason the hearing was continued several times at ~helton's request and was finallyheld on November 29, 1973. The entire transcript of such hearing was presented tothe Board at

### itsmeeting

on December 

### 8, 1973.The November 29 hearing revealed: Shelton had failed to properly verifyhis applicationby signing it before a notary; he had not paid the $100 fee asrequired by section 66-1031(2), R.C.M. 1947; only one of his references' responses was acceptable, the other had been returned with the word "unknowrl" written as an
answer tomany of the questions; and, therewas much confusion 

### as to ~helton's prior licensing. In explanation of the unsatisfactory reference responses, Shelton stated he was told to try and use Montana doctors as references but he had been inMontana a very short time and there just was not sufficient time forMontana doctors to get toknow him and his qualifications. He later gave four more references to the Board at

### itsrequest, but two of these were returned undelivered. The confusion as to ~helton's prior licensingwas brought

on by the fact he was licensed topractice only osteopathy in Washington and Michigan. 

### His license with the stateof Kentucky could not be evaluated, although the Board made several attempts to determine exactly what the Kentucky license entailed, and what examination was used by the Kentucky Medical Examiners in 1958, when Shelton took the examination. The Board was unable toget the required information. The November hearing further revealed that Shelton had practiced in 

### several hospitals in the stateswhere he was licensed; that he was admitted topractice in St. James Community Hospital inButte, Montana--the firstDoctor of Osteopathy tobe granted the privilege under the 1973 amendment to section 66-1025, R.C.M. 1947; he had been trained atthe School of Aerospace Medicine and laterbecame a military flight surgeon. Sheltonwas alsorecommended for a program to train tobe an astronaut physician, a more sophisticatedbranch of the airforce flight surgeon training. The record shows that Shelton isnow employed attheVeterans Hospital in Miles City, Montana, where he 

### is engaged innuclear medicine.The Montana Board of Medical Examiners reviewed the entire transcript and allowed one additionalmonth for Shelton to present any additional documentary evidence that he chose to present. On January 9, 1974, the Board entered its order and notice of nonacceptance of sheltonlsapplication for a licenseby reciprocity. That orderwas thebasis of Sheltonlsappeal to the district court on February 

### 4, 1974. The parties stipulated to the content of the record transmitted tothe district court. March Hon

# . Gordon Bennett entered an order affirming the ~oard's decision. Shelton filed objections to the order and hearing was setand heard on April 

### 5, 1974. On April 15, 1974, the district court entered an order overruling sheltonlsobjections. The issues presented forreview on appeal are: 

### 1. Did the Board actwithin thescope of 

### itsconstitutional and statutory authority in denying Shelton a licenseby reciprocity topractice unlimited medicine and surgery inMontana, and 2. Was the Board's action in denying the licenseby reciprocity and thereasons given supported by reliable, probative and substantial evidence? Section 66-1011, R.C.M. 1947, of the Medical Practice Act, states the purpose of theAct: 

### "It 

### is hereby declared, as a matter of legislative policy in the stateof Montana, that the practice of medicine within the stateof Montana 

### is a privilege granted by the legislative authority and 

### isnot a natural right of individuals and that it is deemed necessary, as a matter of such policy and in the interests of the health, happiness, safety and welfare of the people of Montana, toprovide laws and provisions covering the granting of that privilege and its subsequent use, control and regulation tothe end that the public shallbe properly protected against unprofessional, improper, unauthorized and unqualified practice of medicine and to license competent physicians to practice medicine and thereby provide for the health needs of the people of Montana. II Section 66-1017(1), 

### R.C.M. 1947, then provided that the Board of Medical Examiners shall:It* 

# *

# * adopt and promulgate such rules and regulations asthe board may deem necessary orproper tocarry out the provisions and purposes of this actwhich shallbe fair, impartial and nondiscriminatory

# * f:

# *.
It 

### is therefore, the duty of the Board to insure:

"J: 

# *

# * that the public shallbe properly protected against unprofessional, improper, unauthorized and unqualified practice of medicine and to license competent physicians topractice medicine. It The Board must decide if an applicant to practice medicine in Montana 

### is duly qualified and comes within the mandate given it by the legislature. To accomplish this, theBoard requires each applicant to fillout an application, furnish references, verify the applicationbefore a notary, and appear before theBoard for a personal interview. It 

### is theburden of the applicant to supply the Board with the necessary information. It 

### is the duty of the Board to investigate the information supplied to determine if the applicant 

### is qualified topractice inMontana. Section 66-10311, R.C.M. 1947, requires each applicant topay a fee of $100 to defray the costs of investigation by the Board. There has long been a conflict as to the practice of Doctors of Osteopafhy in a medical world dominated by Doctors of Medicine. This conflict has finallybeen resolved inMontana. Section 66-1025 (6), R.C.M. 1947, states that holders of the degree of Doctor of Osteopathy granted after 1955

### willbe certified in the same manner
as provided forphysicians. That statute alsoprovides theway for certification, by either passing the Montana Board Examination, passing the federal licensing examination or: "(c) A valid, unsuspended, and unrevoked license or certificate issued to the applicant on the basis of an examination by an examining board under the laws of another state or territory of the United States or of the District of Columbia or of a foreign countrywhose licensing standards atthe time the license or certificate was issuedwere, in thejudgment of the board, essentially equivalent to those of this state for granting a license topractice medicine, ifunder the scope of the license or certificatethe applicantwas authorized topractice medicine in the other state, territory, or country." (Emphasis supplied.)Applying allof the above cited 

### laws to the facts of the instant case, we find the Board of Medical Examiners acted within the scope of 

### its constitutional and statutory authority indenying Shelton a licenseby reciprocity topractice unlimited medicine and surgery in the state of Montana. The Board was not acting discriminatorily nor capriciously in 

### its denial. By failing to supply the Board with thenecessary information for it to form an opinion as tohismedical abilityand his moral qualifications, Shelton has not met hisburden. He has not fully cooperated with the Board, even after the Board accepted his initial application and gave it fullfaith and credit, subject toinvestigation, by the issuance of a temporary license topractice inMontana during this period, The feerequired of allapplicants was not paid. The required reference response was not furnished. He failed to take the Flex Examination as required, after the Board offered towaive thebasic science section. The reciprocity requirements from Michigan and Washington were not adequate. The Kentucky standards atthe time he was licensed there could not be satisfactorilydemonstra ted

# . Judgment of the district court 

### is affirmed.



# --- Justice

We Concur:

- b Hon. Arthur Martin, sittingfor Chief Justice James 

### T. Harrison.